NECESSITY, FUNCTION, AND CONFORMITY:
KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and
administrative regulations pertaining to surface coal mining and reclamation
operations under the permanent regulatory program. This administrative
regulation provides for the defining of certain essential terms used in 405 KAR
Chapter 20.

Section 1. Definitions. (1) "Acid
drainage" means water with a pH of less than six (6.0) and in which total
acidity exceeds total alkalinity, discharged from an active, inactive, or
abandoned surface coal mine and reclamation operation or from an area affected
by surface coal mining and reclamation operations.

(2) "Acid-forming materials"
means earth materials that contain sulfide minerals or other materials which,
if exposed to air, water, or weathering processes, form acids that may create
acid drainage.

(3) "Adjacent area" means
land located outside the affected area or permit area, depending on the context
in which "adjacent area" is used, where air, surface or groundwater,
fish, wildlife, vegetation or other resources protected by KRS Chapter 350 may
be adversely impacted by surface coal mining and reclamation operations.

(4) "Affected area" means any
land or water area which is used to facilitate, or is physically altered by,
surface coal mining and reclamation operations. The affected area includes the
disturbed area; any area upon which surface coal mining and reclamation
operations are conducted; any adjacent lands the use of which is incidental to
surface coal mining and reclamation operations; all areas covered by new or
existing roads used to gain access to, or for hauling coal to or from, surface
coal mining and reclamation operations, except as provided in this definition;
any area covered by surface excavations, workings, impoundments, dams,
ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden
piles, spoil banks, culm banks, tailings, holes or depressions, repair areas,
storage areas, shipping areas; any areas upon which are sited structures,
facilities, or other property or material on the surface resulting from, or
incident to, surface coal mining and reclamation operations; and the area
located above underground workings associated with underground mining
activities, auger mining, or in situ mining. The affected area shall include
every road used for the purposes of access to, or for hauling coal to or from,
surface coal mining and reclamation operations, unless the road:

(a) Was designated as a public road
pursuant to the laws of the jurisdiction in which it is located;

(b) Is maintained with public funds,
and constructed in a manner similar to other public roads of the same
classification within the jurisdiction; and

(c) There is substantial (more than
incidental) public use.

(5) "Agricultural use" means
the use of any tract of land for the production of animal or vegetable life.
The uses include, but are not limited to, the pasturing, grazing, and watering
of livestock, and the cropping, cultivation, and harvesting of plants.

(7) "Application" means the
documents and other information filed with the cabinet seeking issuance of
permits; revisions; amendments; renewals; and transfer, assignment or sale of
permit rights for surface coal mining and reclamation operations or, if required,
seeking approval for coal exploration.

(8) "Approximate original
contour" is defined in KRS 350.010.

(9) "Aquifer" means a zone,
stratum, or group of strata that can store and transmit water in sufficient
quantities for domestic, agricultural, industrial, or other beneficial use.

(10) "Auger mining" means a
method of mining coal at a cliff or highwall by drilling holes into an exposed
coal seam from the highwall and transporting the coal along an auger bit to the
surface and shall also include all other methods of mining in which coal is
extracted from beneath the overburden by mechanical devices located at the face
of the cliff or highwall and extending laterally into the coal seam, such as
extended depth, secondary recovery systems.

(11) "Bond pool" or
"Kentucky Bond Pool" means the voluntary alternative bonding program
established at KRS 350.700 through 350.755.

(a) Surface or subsurface geologic,
physical, or chemical data by mapping, trenching, drilling, geophysical, or
other techniques necessary to determine the quality and quantity of overburden
and coal of an area; or

(b) Environmental data to establish the
conditions of an area before beginning surface coal mining and reclamation
operations under the requirements of 405 KAR Chapters 7 through 24 if the
activity may cause any disturbance of the land surface or may cause any appreciable
effect upon land, air, water, or other environmental resources.

(17) "Coal processing plant"
means a facility where coal is subjected to chemical or physical processing or
cleaning, concentrating, crushing, sizing, screening, or other processing or
preparation including all associated support facilities including but not
limited to: loading facilities; storage and stockpile facilities; sheds, shops,
and other buildings; water treatment and water storage facilities; settling
basins and impoundments; and coal processing and other waste disposal areas.

(18) "Coal processing waste"
means materials which are separated from the product coal during the cleaning,
concentrating, or other processing or preparation of coal.

(19) "Collateral bond" means
an indemnity agreement in a sum certain payable to the cabinet executed by the
permittee and which is supported by the deposit with the cabinet of cash,
negotiable certificates of deposit, or an irrevocable letter of credit of any
bank organized and authorized to transact business in the United States.

(20) "Compaction" means
increasing the density of a material by reducing the voids between the
particles by mechanical effort.

(21) "Cropland" means land
used for the production of adapted crops for harvest, alone or in a rotation
with grasses and legumes, and includes row crops, small grain crops, hay crops,
nursery crops, orchard crops, and other similar specialty crops.

(22) "Day" means calendar day
unless otherwise specified to be a working day.

(23) "Department" means the
Department for Natural Resources.

(24) "Disturbed area" means
an area where vegetation, topsoil, or overburden is removed or upon which
topsoil, spoil, coal processing waste, underground development waste, or
noncoal waste is placed by surface coal mining operations. Those areas are classified
as "disturbed" until reclamation is complete and the performance bond
or other assurance of performance required by 405 KAR Chapter 10 is released.

(25) "Diversion" means a
channel, embankment, or other manmade structure constructed to divert water
from one (1) area to another.

(26) "Downslope" means the
land surface below the projected outcrop of the lowest coalbed being mined
along each highwall.

(27) "Embankment" means a
manmade deposit of material that is raised above the natural surface of the
land and used to contain, divert, or store water; to support roads or railways;
or for other similar purposes.

(28) "Ephemeral stream" means
a stream which flows only in direct response to precipitation in the immediate
watershed or in response to the melting of a cover of snow and ice, and which
has a channel bottom that is always above the local water table.

(29) "Excess spoil" means
spoil disposed of in a location other than the coal extraction area, except
that spoil material used to achieve the approximate original contour shall not
be considered excess spoil.

(30) "Groundwater" means
subsurface water that fills available openings in rock or soil materials to the
extent that they are considered water saturated.

(31) "Head-of-hollow fill"
means a fill structure consisting of any material, other than coal processing
waste and organic material, placed in the uppermost reaches of a hollow near
the approximate elevation of the ridgeline, where there is no significant
natural drainage area above the fill, and where the side slopes of the existing
hollow measured at the steepest point are greater than twenty (20) degrees or
the average slope of the profile of the hollow from the toe of the fill to the
top of the fill is greater than ten (10) degrees.

(32) "Highwall" means the
face of exposed overburden and coal in an open cut of a surface mining activity
or for entry to underground mining activities.

(33) "Historically used for
cropland."

(a) "Historically used for
cropland" means that lands have been used for cropland for any five (5)
years or more out of the ten (10) years immediately preceding:

1. The application; or

2. The acquisition of the land for the
purpose of conducting surface coal mining and reclamation operations.

(b) Lands meeting either paragraph (a)1
or 2 of this subsection shall be considered "historically used for
cropland".

(c) In addition to the lands covered by
paragraph (a) of this subsection, other lands shall be considered
"historically used for cropland" as described below:

1. Lands that would likely have been
used as cropland for any five (5) out of the last ten (10) years immediately
preceding the acquisition or the application but for some fact of ownership or
control of the land unrelated to the productivity of the land; and

2. Lands that the cabinet determines,
on the basis of additional cropland history of the surrounding lands and the
lands under consideration, are clearly cropland but fall outside the specific
five (5) years in ten (10) criterion.

(d) Acquisition includes purchase,
lease, or option of the land for the purpose of conducting or allowing through
resale, lease or option, the conduct of surface coal mining and reclamation
operations.

(34) "Hydrologic balance"
means the relationship between the quality and quantity of water inflow to,
water outflow from, and water storage in a hydrologic unit such as a drainage
basin, aquifer, soil zone, lake, or reservoir. It encompasses the dynamic
relationship between precipitation, runoff, evaporation, and changes in ground
and surface water storage.

(35) "Impoundment" means a
closed basin, naturally formed or artificially built, which is dammed or
excavated for the retention of water, sediment, or waste.

(36) "Industrial/commercial
lands" means lands used for:

(a) Extraction or transformation of
materials for fabrication of products, wholesaling of products, or long-term
storage of products, and heavy and light manufacturing facilities.

(b) Retail or trade of goods or
services, including hotels, motels, stores, restaurants, and other commercial
establishments.

(37) "In situ processes"
means activities conducted on the surface or underground in connection with
in-place distillation, retorting, leaching, or other chemical or physical
processing of coal. The term includes, but is not limited to, in situ
gasification, in situ leaching, slurry mining, solution mining, borehole
mining, and fluid recovery mining.

(38) "Intermittent stream"
means:

(a) A stream or reach of stream that
drains a watershed of one (1) square mile or more but does not flow
continuously during the calendar year; or

(b) A stream or reach of a stream that
is below the local water table for at least some part of the year, and obtains
its flow from both surface runoff and groundwater discharge.

(39) "KAR" means Kentucky
administrative regulations.

(40) "KRS" means Kentucky
Revised Statutes.

(41) "Land use" means
specific functions, uses, or management-related activities of an area, and may
be identified in combination when joint or seasonal uses occur and may include
land used for support facilities that are an integral part of the use. In some
instances, a specific use can be identified without active management.

(42) "Monitoring" means the
collection of environmental data by either continuous or periodic sampling
methods.

(46) "OSM" means Office of
Surface Mining Reclamation and Enforcement, United States Department of the
Interior.

(47) "Outslope" means the
face of the spoil or embankment sloping downward from the highest elevation to
the toe.

(48) "Overburden" is defined
in KRS 350.010.

(49) "Perennial stream" means
a stream or that part of a stream that flows continuously during all of the
calendar year as a result of groundwater discharge or surface runoff. The term
does not include "intermittent stream" or "ephemeral
stream".

(50) "Performance bond" means
a surety bond, a collateral bond, or a combination thereof, or bonds filed
pursuant to the provisions of the Kentucky Bond Pool Program (405 KAR 10:200,
KRS 350.595, and KRS 350.700 through 350.755), by which a permittee assures
faithful performance of all the requirements of KRS Chapter 350, 405 KAR
Chapters 7 through 24, and the requirements of the permit and reclamation plan.

(52) "Permit area" means the
area of land and water within boundaries designated in the approved permit
application, which shall include, at a minimum, all areas which are or will be
affected by surface coal mining and reclamation operations under that permit.

(53) "Permittee" means an
operator or a person holding or required by KRS Chapter 350 or 405 KAR Chapters
7 through 24 to hold a permit to conduct surface coal mining and reclamation
operations during the permit term and until all reclamation obligations imposed
by KRS Chapter 350 and 405 KAR Chapters 7 through 24 are satisfied.

(54) "Person" is defined in
KRS 350.010.

(55) "Precipitation event"
means a quantity of water resulting from drizzle, rain, snowmelt, sleet, or
hail in a specified period of time.

(56) "Prime farmland" means
those lands which are defined by the Secretary of Agriculture in 7 C.F.R. 657
and which have been "historically used for cropland" as that phrase
is defined above.

(57) "Public road" means any
publicly owned thoroughfare for the passage of vehicles.

(58) "RAM" means Reclamation
Advisory Memorandum.

(59) "Reclamation" is defined
in KRS 350.010.

(60) "Recreation land" means
land used for public or private leisure-time use, including developed
recreation facilities such as parks, camps, and amusement areas, as well as
areas for less intensive uses such as hiking, canoeing, and other undeveloped
recreational uses.

(61) "Residential land" means
tracts employed for single and multiple-family housing, mobile home parks, and
other residential lodgings.

(62) "Road" means a surface
right-of-way for purposes of travel by land vehicles used in coal exploration
or surface coal mining and reclamation operations. A road consists of the
entire area within the right-of-way, including the roadbed, shoulders, parking
and side area, approaches, structures, ditches, surface, and contiguous
appendages necessary for the total structure. The term includes access and haul
roads constructed, used, reconstructed, improved, or maintained for use in coal
exploration or surface coal mining and reclamation operations, including use by
coal hauling vehicles leading to transfer, processing, or storage areas. The
term does not include pioneer or construction roadways used for part of the
road construction procedure and promptly replaced by a road pursuant to 405 KAR
Chapters 16 and 18 located in the identical right-of-way as the pioneer or
construction roadway. The term also excludes any roadway within the immediate
mining pit area.

(63) "Safety factor" means
the ratio of the available shear strength to the developed shear stress, or the
ratio of the sum of the resisting forces to the sum of the loading or driving
forces, as determined by accepted engineering practices.

(64) "SCS" means Soil
Conservation Service.

(65) "Sedimentation pond"
means a primary sediment control structure designed, constructed, and
maintained in accordance with 405 KAR 16:090 or 405 KAR 18:090 and including
but not limited to a barrier, dam, or excavated depression which slows down
water runoff to allow suspended solids to settle out. A sedimentation pond
shall not include secondary sedimentation control structures, such as straw
dikes, riprap, check dams, mulches, dugouts, and other measures that reduce
overland flow velocity, reduce runoff volume, or trap sediment, to the extent
that the secondary sedimentation structures drain to a sedimentation pond.

(66) "Slope" means average
inclination of a surface, measured from the horizontal, generally expressed as
the ratio of a unit of vertical distance to a given number of units of
horizontal distance (e.g., 1v:5h). It may also be expressed as a percent or in
degrees.

(67) "Slurry mining" means
the hydraulic breakdown of subsurface coal with drill-hole equipment, and the
eduction of the resulting slurry to the surface for processing.

(68) "Soil horizons" means
contrasting layers of soil parallel or nearly parallel to the land surface.
Soil horizons are differentiated on the basis of field characteristics and
laboratory data. The four (4) master soil horizons are:

(a) "A horizon." The
uppermost mineral layer, often called the surface soil. It is the part of the
soil in which organic matter is most abundant, and leaching of soluble or
suspended particles is typically the greatest.

(b) "E horizon." The layer
commonly near the surface below an A horizon and above a B horizon. An E
horizon is most commonly differentiated from an overlying A horizon by lighter
color and generally has measurably less organic matter than the A horizon. An E
horizon is most commonly differentiated from an underlying B horizon in the
same sequum by color of higher value or lower chroma, by coarser texture, or by
a combination of these properties.

(c) "B horizon." The layer
that typically is immediately beneath the E horizon and often called the
subsoil. This middle layer commonly contains more clay, iron, or aluminum than
the A, E, or C horizons.

(d) "C horizon." The deepest
layer of soil profile. It consists of loose material or weathered rock that is
relatively unaffected by biologic activity.

(69) "Soil survey" means a
field and other investigation, resulting in a map showing the geographic
distribution of different kinds of soils and an accompanying report that
describes, classifies, and interprets the soils for use. Soil surveys shall
meet the standards of the National Cooperative Soil Survey.

(72) "Substantially disturb"
means, for purposes of coal exploration, to significantly impact land or water
resources by blasting; by removal of vegetation, topsoil, or overburden; by
construction of roads or other access routes; by placement of excavated earth
or waste material on the natural land surface; or by other activities, or to
remove more than twenty-five (25) tons of coal.

(73) "Surety bond" means an
indemnity agreement in a sum certain, payable to the cabinet and executed by
the permittee, which is supported by the performance guarantee of a corporation
licensed to do business as a surety in the Commonwealth of Kentucky.

(76) "Suspended solids" or
nonfilterable residue, expressed as milligrams per liter, means organic or
inorganic materials carried or held in suspension in water which are retained
by a standard glass fiber filter in the procedure outlined by the U.S. EPA's
regulations for waste water and analyses (40 C.F.R. 136).

(77) "Ton" means 2000 pounds
avoirdupois (.90718 metric ton).

(78) "Topsoil" means the A
and E soil horizon layers of the four (4) master soil horizons.

(79) "Toxic-forming
materials" means earth materials or wastes which, if acted upon by air,
water, weathering, or microbiological processes, are likely to produce chemical
conditions in soils or water that are detrimental to biota or uses of water.

(80) "Toxic mine drainage"
means water that is discharged from active or abandoned mines or other areas
affected by coal exploration or surface coal mining and reclamation operations,
which contains a substance that through chemical action is likely to kill,
injure, or impair biota commonly present in the area that might be exposed to
it.

(81) "Transfer, assignment, or
sale of permit rights" means a change in ownership or other effective
control over the right to conduct surface coal mining operations under a permit
issued by the cabinet.

(a) Surface operations incident to
underground extraction of coal or in situ processing, including construction,
use, maintenance, and reclamation of roads, aboveground repair areas, storage
areas, processing areas, and shipping areas; areas upon which are sited support
facilities including hoist and ventilating ducts; areas utilized for the
disposal and storage of waste; and areas on which materials incident to
underground mining operations are placed; and

(b) Underground operations such as
underground construction, operation, and reclamation of shafts, adits,
underground support facilities; in situ processing; and underground mining,
hauling, storage, and blasting.

(84) "U.S. EPA" means United
States Environmental Protection Agency.

(85) "Water table" means the
upper surface of a zone of saturation, where the body of groundwater is not
confined by an overlying impermeable zone. (18 Ky.R. 2490; Am. 2853; eff.
4-3-92; TAm eff. 8-9-2007.)